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Clark Boardman Callaghan call 1-800-762-5272. lawyers Cooperalive Publishing. WESTIA\¡. West Publishing Please provide OFFR NUER 814254. (Ç 1998 West Group 9-9754-2/1-98 18142541 å r f i Utahg Published by The Utah State Bar UTAH BAR JOURNAL- 645 South 200 East Salt Lake City. Utah 8411 I Vol. 11 NO.1 February 1998 Telephone (80 i) 53 I -9077 www.utahbar.org VISION OF THE BAR: To lead society in the creation of a justice system Bar Journal Committee and Editorial Board that is understood, valued, respected and accessible tb alL. Editor MISSION OF THE BAR: To represent lawyers in the State of Utah and Calvin E. Thorpe to serve the public and the legal profession by promoting jusVce, profes-, Associate Editors sional excellence, civility, ethics, respect for and understanding of, the .law. 00.' Wiliam D. Holyoak Randall L. Romrell Letters To The Editor.......................................................................................\.~ . Articles Editors Christopher J. Burke President's Message Blain H. Johnson Lee S. McCullough Bar Organization: Understand It and Participate in It... ...................................6 by Charlotte L. Miler Letters Editor Victoria Kidman Enforceability of Exculpatory Clauses Views from the Bench Editors in Hazardous Recreational Activities ................ ......................... ......................8 Judge Michael L. Hutchings by Gary L. Johnson G. Kevin Jones Lorena P. Riffo Understanding Legal Malpractice ..................................................................13 Legislative Report Editors by Michael F. Skolnick and Richard Masson Lisa Watts Baskin Heather Miller Where We Have Been and Where We May Be Headed: Case Summaries Editors Some Thoughts on the Progress of the Utah Judiciary ..................................18 GlenA. Cook by Chief Justice Michael D. Zimmerman J. Craig Smith Daniel M. Torrence Dear Access to Justice Task Force .................................................................22 Book Review Editors by Gary G. Sackett Betsy L. Ross Penniann J. Schumann State Bar News .................................................................. .............................25 "How to . ." Editors The Barrister David Hartvigsen Easy Steps To Avoid Bar Complaints and Malpractice..................................36 Lisa M. Rischer Annalisa A. Steggell by Charles A. Gruber Jndicial Profies Editors Views from the Bench Brett J. DelPorto The Child Witness: An Ever-Increasing Fact of Life in Utah Courts ............38 Angelle H. Frehner Derek P. Pullan by Judge Donald 1. Eyre Jennifer L. Ross Legislative Report...........................................................................................45 ADREditor 'by Lisa Watts Baskin Cherie P. Shanteau Law and Technology Editors Judicial Profile Bruce R. Findlay Judge G. Rand Beacham ................................................................................49 Mark J. Gregersen by Kim S. Colton Young Lawyer Representatives Mark C. Quinn Utah Bar Foundation ......................................................................................51 Cathy E. Roberts Peggy E. Stone CLE Calendar .................................................................................................52 Suchada P. Bazzelle Classified Ads .................................................................................................53 David W. Brown Tamra Cole COVER: From Inside An Abandoned House, Ophir, Utah, by Brett P. Johnson. David B. Erickson Andrea J. Garland CORRECTION H. Craig Hall The Credit for the December 1997 cover photograph should have read as follows: Sandra K. McDonald "Provo River in Winter" by Judge Fred D. Howard, Provo, Utah" Laurie J. Sartorio Kimberly J. Smith Members of the Utah Bar who are interested in having photographs they have taken of Utah scenes published Denver Snuffer on the cover of the Ufah Bar Journal should contact Randall L. Romrell, Randle, Deamer, Zarr, Romrell & Lee, David R. Ward P.c.. 139 East South Temple, Suite 330, Salt Lake City, UT, 84111-1169, 531-0441. Send a slide, transparency or Judge Homer F. Wilkinson print of each scene you want to be considered. John C. Ynchausti The Utah Bar Journal is published monthly, by the Utah.State Bar. One copy of each issue is furnished to members as part of their State Bar dues. Subscription price to others. $40; single copies. $4.00. For information Bar Commission Liaison on advertising rates and space reservation, call or write Utah State Bar offices. D. Frank Wilkins Statements or opinions expressed by contributors are not necessarily- those of the Utah State Bar, and publi- Bar Staff Liaison cation of advertisements is not to be considered an endorsement of the product or service advertised. Maud C. Thurman Copyright (t 1998 by the Utah State Bar. All rights reserved. Fi.'bmw)' 1998 3 --" LETTERS~ Dear Editor: least strive to present a balanced view of Kathleen McGinty, my Chairperson on the I recently received Vol. 10, NO.7 (per currently litigated issues. This is especially Council of Environmental Quality, believes the cover) or 8 (per the table of contents), true where the litigation concerns govern- 'there is a danger of abuse of the withdraw/ the October 1997 issue of the Utah Bar ment agencies, which are often hamstrung antiquities authorities especially since these Journal. Since the demands of work and by restrictions on public comment about lands are not really endangered,' this sort family leave little leisure reading time, like ongoing cases. I hope Mr. Perry's polemic is of bold action wil help me at the voting many attorneys no doubt, I generally select not an indication of a new editorial trend at booth with those same disaffected 'enviros.' one or two articles to skim. I was thus anx- the Journal. Secondly, even though I haven't the ious to read Mr. Perry's article about the Sincerely, slightest idea about where this area actually I Grand Staircase-Escalante National Monu- Eva Novak is, several large contributors to my cam- ment, since I hadn't had an opportunity to paign don't want the competition that all educate myself on the topic. I was sorely Dear Editor: those coal reserves could create for them. disappointed at the partisan tone and con- I read with interest David Negr's December While the Utah voters and Congressional tent of the article. article about the Grand Staircase-Escalante delegation, who have never supported me, I first had misgivings when I read in the Monument. Mr. Negri's article concludes in will be angered, those critical special inter- author's bio that Mr. Perry has filed a case part that the designation of the monument est voters out west wil love it." challenging the monument designation. A will withstand judicial attack because Presi- When the truth comes out Mr. Negri the party litigant is unlikely to present a bal- dent Clinton in his proclamation mentioned Monument may crumble. anced view, and for this reason, should the "exemplary opportunities for geologists, Sincerely, usually not be allowed to abuse the forum paleontologists, archeologists, historians, Allen K. Young of a nonpolitical educational journal to air and biologists." What Mr. Negri omitted to his side of an ongoing case. My suspicions mention was the truth about Mr. Clinton's Re: Response to Charlotte L. Miler's article were confirmed with the first sentence reasons for designating 1.7 million acres of on Pro Bono ascribing political motivations to the pro- our State as a monument. Would Mr. Negri's Dear Editor: posed designation. The tone of the article opinion be the same if Mr. Clinton's procla- I have served as a judge pro tem in only deteriorated from there, at one point mation would have read as follows? small claims court, and as a hearing officer disparagingly describing the President as "Good morning ladies and gentlemen. for Salt Lake City in business license issues. "dron(ing) on and on," even disintegrating This morning I am about to unilaterally take I recently became legal offcer for the Utah into vituperative paragraphs ending in away the right of all citizens to mine, Wing of the Civil Air Patrol. I understand exclamation points. Probably only your explore for oil and gas, graze, or even use these services to be pro bono. I am con- editors prevented even less professional most of 1.7 milion acres of land in Utah. cerned with the direction being taken in use of gimmickry such as all capital letters There are a number of reasons why I have defining what constitutes pro bono work. I or bold sentences. I hope Mr. Perry's briefs decided to take this action